Hilden v. Ball

787 P.2d 1122 HILDEN,

Rayola individually and as

guardian ad litem for Jeremiah Hilden Hilden, children,

and Heather minor

Plaintiffs-appellants, BALL, Defendant-respondent.

Dr. James

No. 17394.

Supreme Court of Idaho.

May 1989. Rehearing

On March

Webb, Burton, Carlson, Pedersen & Falls, Webb, plaintiffs-appellants. Twin argued. L. Pedersen Kenneth Boise, Hull, Smith, Quane, & Howard Brassey defendant-respondent. Andrew C. argued.

BAKES, Chief Justice. defendant, alleging medi- sued

Plaintiffs administra- malpractice in defendant’s cal prep- Hilden in to Robert tion of anesthesia jury returned a surgery. The aration for negli- alleged of Dr. Ball’s for then died a result verdict defendant. Plaintiffs a Hil- gent Specifically, moved for new trial. motion was care. anesthetic judgment negligent denied and was entered accord- Dr. Ball dens asserted that was ingly. appeal. Plaintiffs in not Hilden be- “pre-oxygenating” Mr. might obesity him vul- cause Hilden’s make to Robert Hilden was scheduled have a an- respiratory difficulty nerable under to 12, 1984, hemorrhoidectomy July by on Dr. testimony pre-ox- that esthesia. There was Ellingham Hayden Memorial Hos- at Cassia ygenation might have increased his blood Burley. Ball to pital Dr. James was by percent.1 jury ten oxygen supply during the provide surgery. anesthesia Ball, for and the a verdict Dr. returned (440 obesity Because of Mr. Hilden’s new The motion Hildens moved for a trial. pounds), Ellingham Doctors and Ball decid- denied, Ball was judgment for Dr. was place legs him ed to on his back with his entered, appeal We af- and this followed. during folded over his sur- back abdomen judgment firm the of the trial court. position ly- gery, rather than the usual of legs down, ing on the be- abdomen with position greatly

cause the normal would ability to compromise Mr. Hilden’s breathe. first the tri Appellants contend that general Dr. Ball administered anesthesia incorrectly al court instructed the following sequence drugs. a of standard local care Dr. Ball. applied a standard of to Initially, a combination of valium and fen- disagree. I.C. 6-1012 mandates that We § tanyl pentothal was administered. Sodium care is a local standard of to be utilized was administered about fifteen minutes la- cases: malpractice medical Testimony pento- ter. was that after community standard 6-1012. Proof of anesthesiologist effect thal takes must practice malpractice patient by for the of health care manually “breathe” ven- case, tilating “bagging” patient’s lungs any or case.—In claim or action oxygen. any injury with Dr. Ball was to to to death of damages 100% unable due or lungs. Mr. Hilden’s He person, brought against any physician ventilate checked airway upper Mr. provider obstruc- health surgeon or other of and found Dr. Ball then limitation, tion none. admin- care, including, without drug istered the anectine to relax Mr. Hil- assistant, dentist, prac physicians’ nurse den’s vocal other he cords and muscles so titioner, nurse, prac registered licensed could insert an endotracheal tube Hil- down nurse, anesthetist, tical nurse medical breathing. den’s throat assist his Mr. hospital technologist, physical therapist, then oxygen Hilden was was intubated home, nursing any person or vicari or administered, but even this failed to en- ously them or negligence for the of liable ability hance Mr. Hilden’s air. receive them, provision on account of Dr. Ball removed the endotracheal tube provide or on of or health care failure make sure it was not defective obstruct- relat any matter incidental or account of ed, then reinserted it. Hilden still was thereto, plaintiff ed such claimant or to receive air. Just minutes after unable must, part or her essential his as an pentothal, first received sodium Hilden he chief, affirmatively prove case in brought from arrest lack died cardiac testimony pre expert direct oxygen the heart. evi ponderance competent dence, then and that such by plaintiffs Hilden survived Robert was defendant ap Hilden, to meet the wife, negligently Hil- there his and Jeremiah Rayóla failed prac Hilden, children, care plicable standard health Heather who den and community such tice in which brought claiming suit that Robert Hilden provid- blood-oxygen level testimony probably Hilden crease in would that Mr. 1. There attempt "bronchospasm," to overcome gone ed additional time spasms. into a condition Also, testimony with lung capillaries there contract and will where the "might" been resuscitated oxygen operate air to the reserve to transfer place. testimony arrested the first not have There 10% in- blood. care allegedly applicable was or should have been failed to meet the standard of provided, as such standard existed at the practice community health of the care place alleged time and provided, which such care was as such physician surgeon, hospital of such existed, respect standard then or other such provider health care and as provider class of health care such and there standard then existed belonged Ball and which func- he was respect with to the class of health care tioning. provider that such defendant then and Physicians, such as the defendant Dr. belonged in capacity there to and which Ball, in judged comparison with shall be he, functioning. she or was Such in- similarly qualified physicians and trained providers dividual health care shall community, in the same similar judged comparison such cases in communities, taking into account similarly qualified trained and experience, special- training, field of providers same class in same ization, i.e., anesthesiology. community, taking into account his or “community” The term refers to that training, experience, her and fields of geographical ordinarily area served specialization, any. If there medical if general hospital or near- licensed provider be no other like communi- provided. est to such care which was ty practice and the standard is there- indeterminable, If Dr. failed to meet the stan- fore evidence such Ball above practice, standard in Idaho communities at then he is similar dard of health care may time As used in negligent. said be considered. If Dr. Ball such did meet act, “community” term refers care, standard of health then he is ordinarily geographical area that served negligent. hospital general at or licensed applicable The of care to medical standard alleg- nearest to which such care was or malpractice in this is a local cases state (Em- provided. edly should have been care, clearly standard of enunciated added.) phasis our cases. both I.C. 6-1012 § negli- find Dr. jury In order for the Ball See, Richards, e.g., v. 115 Idaho Robertson 6-1012, gent under I.C. § 628, (1987); Magic 769 505 Dekker v. P.2d find, by preponderance a Center, 115 Ida- Valley Medical Regional evidence, “negligently that Dr. Ball failed (1988); 332, v. ho 1213 766 P.2d Smallwood of health applicable

to meet the standard (1988). Dick, 860, 1212 761 P.2d 114 Idaho community practice of the which care instructions here were based court’s or should have allegedly care was such Accordingly, the upon the local standard. then provided, ... as such standard been giving trial no error court committed respect there to the class existed with No. 3. jury Instruction provider health care that such defendant belonged and in then and there II functioning." Id. capacity he ... that next contend Appellants followed

The instruction which regarding proximate No. 3 reads as court’s instruction 6-1012. Instruction 1.C. § argue that improper. They follows: causation was using loss-of- proximate cause instruction a “neg- prove Dr. Ball was In order to given.2 have been chance should causation prove, must di- ligent,” loss- However, request did not appellants by a expert testimony prepon- rect instruction, ap did nor evidence, of-chance causation competent derance court’s object to the Ball, 12, 1984, pellants specifically July James has not proof causation requires have had. Loss-of-chance causation 2. Loss-of-chance Idaho, is not an judicially approved eliminated chance the defendant's plaintiff would otherwise recover given proximate Ac- cause instruction. IDJI 230 now reads as cause instruction.3 cordingly, appellants heard follows: will now be complain regarding the trial court’s fail- “proximate the expression When use give appellants ure to an instruction that cause,” which, I mean cause in natural propose place. failed to in the first Robert probable sequence, produced the com- Mgt. v. V. DeShazo & Associates Farm damage, plained injury, loss or and but

Services, Inc., 101 Idaho 610 P.2d damage would not that cause (1980); Peterson, Holland It not be the have occurred. need (1974). 518 P.2d 1190 if it is a cause. It is sufficient substan- injury, bringing tial factor in about the proximate cause instruction which damage. It not a loss or give Instruction No. court likely injury, damage loss or which reads as follows: (Empha- anyway. occurred would have expression “proximate I use the When added.) sis which, cause,” mean a in natural I cause 51(a)(2), judge once a trial Under I.R.C.P. probable sequence, produced or the dam- jury the should be instruct- determines that age need the complained of. It not be the subject, ed on a it is recommended that only It concurs cause. is sufficient if it applicable judge an IDJI instruc- trial use acting same with some other cause at the finds a in- tion “unless he different it, time, which combination with adequately, more struction accurate- would damage. causes ly clearly or state the law.” Instruction to For act or omission a defendant an Requested In- No. 4 Plaintiffs’ combined plaintiff’s dam- proximate be a cause of a 4 for” struction No. with the “but causa- ages, plaintiff’s must find version language tion from the most recent damages would not have occurred 230. Instruction No. 4 an of IDJI No. was omission, for act or that such of the law of causation accurate statement factor act or omission was a substantial proposed a Appellants in Idaho. causing damages. “more different instruction would which proximate An is not act or omission a accurately clearly adequately, or state plaintiff’s damages dam- cause of a if the 51(a)(2). Accordingly, we law.” I.R.C.P. such ages have occurred without issue. affirm the trial court on this act or omission. paragraph first of Instruction Ill 1987, pre-July, 4 No. version urge Finally, appellants Requested IDJI 230 and was Plaintiffs’ No. refusing grant a new trial court erred 4. Plaintiffs now No. cannot Instruction weight of the clear the evi trial because giving of an instruction claim error guilty Ball was that Dr. dence established requested. Ford they McBride v. cause proximate which was Co., 105 P.2d 55 Motor However, it is Hilden’s death. of Robert (1983). where not for this Court determine lies—that weight” of the evidence argue that the “but “clear Appellants also court. Our task 2 and 3 of the function of trial language paragraphs for” determining there was a whether No. 4 How limited was erroneous. Instruction 1, 1987, trial ever, of discretion July as amended manifest abuse IDJI jury’s verdict it ruled that the the commencement court when months before several re matter, supported by Our the evidence. specifically of this of the trial provides us no basis of the record language proximate for” view adopted “but ever, give oppor- Jury they court theory trial an approved of causation in the Idaho (IDJI). by stating spe- tunity potential Manual errors Instruction correct given proxi- objecting to the for cific reasons Appellants generally objected in- to all mate cause instruction. propose; did not how- structions which rule that the trial prejudicial court abused its discre- that there was error in instruct- ing jury. tion. judgment clearly The instruction most in error the trial court is af- Instruction No. which respondent.

firmed. read: attorney Costs No fees awarded. expression “proximate I use the When

cause,” which, I mean a cause in natural SHEPARD, probable sequence, produced HUNTLEY the dam- JOHNSON, JJ., age complained concur. of. It need not only cause. It is sufficient if it concurs HUNTLEY, Justice, concurring. acting with some other cause at the same point out that Part II and write time, it, which in combination with footnote do not stand for damage. causes proposition rejects that this Court For an act or omission a defendant to use of a loss-of-chance instruction proximate plaintiff’s be a cause of a dam- appropriate notes, majority case. As the ages, plaintiff’s you must find that the preserved appeal, the issue was not damages would not have occurred but any ruling thus thereon would be dicta. omission, such that act and that Jury The fact that the Idaho Instruction act or omission was a substantial factor Manual contains no form instruction on the causing damages. theory speak does not to the status of An act or omission is not a Idaho law. plaintiff’s damages if the dam- ages would have occurred without such BISTLINE, Justice, dissenting. act or omission. Quick making The district court in its re- PART plaintiffs’ conten- view was careful to note selectively Justice Bakes has taken an in tion that “the but for” test contained the writing approach opinion. unusual in paragraph appropriate. second was not better, ordinary, accepted practice, The giving of The district court defended the granted district or de- where a court has asserting this instruction that “[t]he judgment and for a nied motions n.o.v. recently Supreme Idaho Court had defined trial, this court first turns to new is that cause,” proximate Irrigation Challis Co. and reviews the district court’s written 338, 343, 230, State, 107 Idaho 689 P.2d v. case-prece- opinion. As a matter of recent quoted then the ex- (Ct.App.1984), 235 Quick Crane, dent, Appellate v. Part cerpt upon which reliance Challis Review, 759, 770, 111 727 P.2d 1187 Idaho placed: was (1986), requires pro- that the district court proximate cause concept The of contains reasoning the or rationale for its deci- vide fact, components two —cause sion, done, hasn’t and where that (Citations scope legal responsibility. of so it will done in Court remands that omitted) .., order that this Court can make an intelli- cause, in the sense of cause Proximate gent meaningful review. fact, defined as a cause has been se- continuous in natural and provided the district court us with ‘which

Here decision, by any efficient inter- but, quence, unbroken for reasons known written cause, com- himself, vening produces the result only to Justice Bakes elected result slate, i.e., and without which the plained of on a clean without write (Citations have occurred.’ decision. Of would not regard for the district court’s omitted.) component proximate of This by the opinions, the two that written dis-. closely ele- related forthrightly addresses the cause embraces two more trict court First, an event is the cause opinion my ments. presented, so to that two issues Quick succeeding only if the directed, event as fact of a primarily is attention not have oc- succeeding event would first consider requires. This review shall Thus, event. court curred ‘but to the trial plaintiff’s contention for’

319 Thus, necessary anyway. not it was for the an act or omission is the cause ensuing damage damage aspects of be instructed on of if fact likely anyway. would have occurred cause, including proximate the so-called requirement second element is a portion for” of the instruction.4 “but the first event be a ‘substantial factor’ added). (emphasis 208 Here the district R. (Cita- producing succeeding event. equating court erred in “a omitted.) Thus, con- tion a defendant’s equivalent of “the actual cause” is duct the cause in fact of an event court also relied 431 cause.” The § if it a material element and a sub- was Restatement of Torts: (Ci- bringing it stantial factor about. states, legal 431 cause. It Sec. defines omitted) tation legal negligent ‘The conduct is a actor’s R., p. (emphasis supplied). 208 The district (a) his con- cause harm another court went on note that “same lan bringing is factor duct a substantial guage recently Crosby been used in harm,____’ im- The Comment about Co., Machinery 111 Rowand Idaho following 431 states: mediately Sec. (1986).” 729 P.2d 414 Here the district legal In anoth- order to be in error. lan court was somewhat That harm, enough er’s it is not guage appear Crosby opinion. does case The district court’s citation harm occurred had the it, too, impression (T)his leaves the was an negligent____ actor not been opinion Supreme from the Court. How necessary, it not of suffi- itself ever, opinions Crosby the Challis negligence'must cient. also be Appeals. from the were both Court bringing factor in substantial aptly put, Supreme Court More Idaho harm. responsible either Challis Torts, (Second) Restatement Comment opinion. Crosby or the [Nor p. 429. responsible sequel for a third “but for” not, not.be, R. 207. There and should case the same instruction in where any problem with “substantial factor” volved, Edmark Motors v. Twin Cities con- portion the instruction. Substantial Inc., Toyota, P.2d degree of or notes a more than trivial (Ct.App.1987).] slight. upon language Based the found Chal- conclusively it had been established Crosby, lis and the district court reasoned If going day, die that Mr. Hilden was that that: irrespective preoxygenate, of the failure to plaintiff The the has fact that the burden analysis the court’s then district proving that defendant’s sound, nothing remained Justice causing dam- substantial factor to; be sufficient Bakes attend it would age plaintiff to the does not excuse the opinion and to set out the district court’s injury plaintiff proving from that Bakes, Unfortunately it. for Justice affirm would not have occurred “but for” however, proverbial caught he is negligence. Instruction No. defendant’s adopt horns of dilemma. To the district 4 is consistent revised IDJI also necessarily en- opinion also court’s would (Rev. 7/87). plaintiffs presented evi- accepting the that the tail fact Court preoxy- Dr.

dence that Ball’s failure to law, made new Appeals by its Challis case Hil- genate cause of Mr. was the actual Crosby its death, perpetuated in Edmark presented evi- den’s but Dr. Ball cases, greatly modifies well-es- Mr. would have died which dence that Hilden testimony Irrespectlve preoxy- had been also of whether he 4. There is no contention and no Bakes, deigning genated. only by any Mr. Hil- Justice or evidence of kind whatever that ill, opinion, far dying, an has thus or was not address the district court’s den was in extremis. It situation, coming emergency operation able face to face with where to avoid but presented fully assertion Dr. Ball surgeon district court’s that Ball collaborated any- have died Xo testi- evidence that Mr. Hilden would as to the details. witness advance day way. Hilden would have died that fied that Mr. Challis, Edmark, Crosby, proximate tablished and time-tested Idaho that is But, cause law. as Justice reminds Bakes not our concern late date. The time, us from time to and with I which concern here is for” in- whether the “but agree, attorney Wallace, James Keane of any place struction had in the instructions (now deceased), Idaho cautioned this Court given jury which the should have been day up that one have to face to the would this case. deceptive Smothered lan- appel- determination as to which of the two guage in Justice Bakes’ the fact is law-making power. late courts has ap- It plaintiffs requested the first pears day reckoning me paragraph given Instruction No. 4. Nat- present. Bakes, it, now Justice as I see urally plaintiffs anywhere have not Challis, Crosby, and Edmark ignoring any objection giving raised of that preference announcing the new law of portion plaintiffs of the instruction which proximate though orig- cause as it was now requested. objection they reg- inating Otherwise, in this Court. that new istered at the instruction conference clear- would law have be accredited to ly5 plain- informed the district court Appeals, Court of it most whence against giving tiffs were of the modifi- assuredly choosing In did emanate. his paragraphs cations of the two added direction, appears Justice Bakes to be will- misapprehension district court under its creating ing accept responsibility Challis that this issued Court both bad law. Crosby opinions. opin- Justice Bakes Moreover, I for” do not see the “but ion has noted that the IDJI instructions are applicable in cause instruction as recommended.6 implies (emphasis 5. Justice also 104 Idaho at 661 P.2d at 778 Bakes added). words, objections general, specific. precedent than A In other the case law were rather regard transcript appeal approving disapproving closer for the would instructions is of greater pattern have saved him from the embarrassment of committee-drawn value than making jury that statement. The court had counsel instructions. The IDJI instructions are specific objections merely recommendatory. make their off the record. The trial courts following Judge carefully Observe the from Vol. 2 of the Tran- note and take heed of should script, page guiding 472: Burnett’s words. questionable Equally this statement in foot- off-the-record, go THE COURT: Before we majority opinion: page note 2 at 5 of the pro- copies counsel of the Court’s requires proof instructions, 2. Loss-of-chance causation finally posed like for and I’d negligence eliminated a that defendants’ record. The counsel to review those off the plaintiff afternoon, chance to recover that and I'd like time is 3:30 in the have had. causation otherwise the record and counsel to review those off Loss-of-chance Idaho, judicially approved has not been bring Reporter I’ll the Court in and we then approved theory is not an causation put have had a will it on the record after (IDJI). objec- Jury Manual Instruction do And if chance to that. added.) those, Obviously (Emphasis in fur- it is made tions to modifications, and if I have to make attempt to elevate IDJI instruc- therance of the to do that. With I will be able drafted, centrally that, approved, de- adjourned. tions to an Court is law. As stated above statement of Idaho finitive by that both the Idaho Rules 6. It should be noted Burnett, Judge IDJI instructions are not in- the IDJI instructions are of Civil Procedure and provide court-approved in theories tended to by but those committees drafted committees any area of the law. always appear of this be chaired members Furthermore, as an 2 is seen this footnote Court. creating impression loss-of- effort at 171, separate from the somehow chance causation is v. Joint School District No. In Packard apply any 604, principles in (Ct.App.1983), general of causation that 661 P.2d 770 104 Idaho Thus, Burnett, Bakes’ state- writing Justice Judge action. for the Court stated: has not been separate that loss-of-chance causation jury ment instructions are not Pattern saying law; rather, judicially approved is like in Idaho seek to of substantive source embody existing negli- any general principles in of causation They law. are recommenda- judicially approved nature, gence mandatory. action have not tory I.R.C.P. in not Idaho, meaningless. Thus, 51(a)(2). and hence in the substantive standard merely ad- causation So-called loss-of-chance jury in this case should instruction which the specific situation —in this case promulgated factual subsequently dresses judged be is not instruction, against preoxygenating Mr. underlying case Dr. Ball’s decision pattern but the supply, have in- blood which law. fact, request authority. As a matter of only did the not citation Not instruction, given in the but note should no such instruction was Chal- the “but for” too, point made no At that in its defendants, made that the lis case. be language or request includes that had not mentioned the instruction which court language, given proxi- is found in the second on which the trial court which paragraphs proceeded Instruction and third Given That court then mate cause. fact, No. In the fault in the instruc- a discussion of with defendants any requested instruction on given, questioned submit tion was but not which only can lead to proximate party: cause—which appeal by either legitimate that defendant was inference case, given present jury was In its jury content to have the deliberate ver- corre- an instruction on light plaintiff’s requested instruc- dict Jury Idaho Instructions sponding to proximate cause. The district tion on (IDJI) This instruction focuses No. 230. court, reading on its of Challis made based fact, it does not ex- upon cause jury instruct the the determination to ele- forth either the ‘but for’ pressly set particulars parties both involved which factor’ element. ment or ‘substantial unnecessary and uncalled thought to be Rather, explains simply the instruction for. ‘proximate cause’ as: Appeals ob- The Court Challis which, probable a cause natural in- accepted proximate cause served an damage sequence, produced the com- Sharp, found in 82 Ida- struction Smith It need not plained of. 420, (1960): ho 354 P.2d 172 It sufficient if it concurs cause. cause, in the sense of cause in Proximate acting other cause at the with some fact, defined as a cause ‘which has been time, same combination sequence, and continuous un- natural it, damage. causes by any intervening broken efficient completely ex- instruction does not This cause, complained of produces the result in fact. plain the elements of cause which the result would and without Moreover, instruction does not make occurred.’ for a con- entirely it clear that in order That is a sound instruction which has well give liability, curring cause to rise juries. quotation That served in its proximate cause own must be a however, followed, immediately right. See Miller v. Northern Pacific own analysis which was of that Court’s 567, Co., P. 845 Railway 24 Idaho making: (1913), cited in 57 AM.JUR.2D and cases proximate cause em- component This (1971). However, 176-82 Negligence §§ closely related elements. braces two ob- without this instruction First, is the cause in fact of a an event party. No issue con- jection by either succeeding succeeding only if the event jury instructions cerning occurred for’ event would not have ‘but Conse- appeal. in this has been raised Thus, an act or omis- event. analysis to our quently, we will confine ensuing sion is not the cause in jury instructed. as the fact of causation damage likely would damage question put was whether anyway. have occurred canal, depth water the increased clogging at the trash State, 107 Idaho attributable Irr. Co. v. Challis rack, damage ‘in natural ‘produced’ the (Ct.App.1984). This P.2d sequence ... in combina- probable by single not backed a “first element” was contributing cause in Mr. Hilden’s oxygen supply by percent, was a Hilden his blood creased Or, unanticipated wholly death. opportunity thereby improved to avoid untoward his words, or omission of action suffering low level of in other cardiac arrest due to a body deprive anesthetized put, the inert and Simply loss of Dr. Ball oxygen in his blood. known, chance, time to achieve might of additional of Mr. Hilden name it be whatever life-saving oxygen into his question novelty. simply presents introduction of lungs? It a not preoxygenate Mr. failure to Ball’s whether tion with’ the Questioned increased flow of water as to standards of care that entering the canal from the river. anywhere, have to be adhered to he an- swered, say pertinent “I would the most 343, State, Challis Irr. Co. 107 Idaho at always standard is one is aware of the 689 P.2d 230. patient, safety knowing that we are Truly, display gratu- this was a classic dealing very with potent drugs, toxic and comment, more commonly itous known un- knowing patient that the has to have der the rubric of dicta. Other than but assured ventilation At to survive.’’ the fact that the district court in Mr. Hil- point specifi- the examination was directed accepted gospel coming den’s case it as cally to his care Hil- deceased Mr. Court, Supreme from the had to den: followed, it would be of no mo- otherwise Q. I want to talk about Bob Hilden. ment, other than educational. Unfortu- in charge You were of his anesthesia? nately language the ‘but for’ therein con- thought by Publishing tained was Co. West IA. was. holding so opinion,

to be and was induction, Q. you And used before 7, treated headnote and in turn so ac- anesthesia, drug you and into used a cepted by the district court this case. Fentanyl? called IA. did. PART II Q. Fentanyl And is a narcotic medi- presentation Dr. Ball took the stand in cation? Although the case for the defense. Yes, it is. A. incident which in the death of culminated Q. depres- as respiratory It acts place County Bob Hilden took in the Cassia sant? Burley, Idaho, Hospital, unmentioned A. Yes. Bakes’ Dr. Ball’s Justice is that Q. And to the anesthesia certainly he credentials were such that patient in had a conversation practiced specialty any- could history get meaningful order graduated and had done so. He where him? College, from Hanemann Medical Philadel- Pennsylvania, in com- Yes. phia, and then A. one-year internship Robert

pleted a at Q. something you And that were Hospital Sayre, Pennsylvania. Packer your job? do in do supposed to order to only practiced Memorial He had at Cassia I did that. A. Hospital practiced since 1981. He also Q. part job ask And in the Twin and Idaho Falls medicine Falls an- questions but to listen to the the trial in he areas. At November swers? retired, living in that he had and was said A. Yes. Wyoming. ques- Q. your one of And answers practice County Hospital His Cassia well, Doc, trouble I have tions was anesthesiologist. Prior to mov- breathing lay when down? County, practiced he at ing to Cassia A. That true. Valley resort area of Sun and Ketchum going in? Q. And knew that years, starting in follow- for twelve Yes, sir. A. hospi- practiced a 500-bed ing which history he Q. also from the You knew Barbara, Dr. Ball California. tal Santa overweight? way anesthesiologist, only performed as an Yes, I open surgery. knew that. performed heart A. looking Q. could tell preoxygenating critical issue of As to the probably? himat anesthesiology undergo patients about true, possible That is It’s not surgery, he his stan- A. testified that prior to many pounds, but that was judge how weren’t dards California different Burley. available also. or Twin Falls Pocatello Q. big A. Yes. man? He was big. very Q. you to do A. He was And the reason wanted give to as said before was that was we Q. Actually you determined it wasn’t you run into kind him more time if very him to short hard for become problems? breath? true. practice

A. That is as soon my A. It’s standard soon as mil tolerate Q. as to as you expected have And feasible mask, [oxygen] to him 0’2 give his size? 100% with a man of breathing. augment his expected I have it. A. would your plan, you Q. And that —And Q. came to the conclusion you And it? you get didn’t to do disappointed compro- were already his ventilation mised? A. I was not able to move air after Yes,

A. I did. induction. going Q. you And were concerned everything and if Q. After induction he had into this that the mere bulk that you going according plan to as far as is his in his around his neck and throat and concerned, put mask on you if mouth, get- problem might cause a get any you can’t air down him and ting gases lungs. down into there? adequate protection in the A. Without That true. A. is airway, yes._ you got prob- Q. And then so lem, your plan? detail you’re examined in some outside doctor was Mr. Hilden: preoxygenating as to get That I was able to A. is true. is Q. get something I to to oxygen want in.

really testimony Is it important. your thing try is Q. And the first to today preoxygen- that he under oath get oxygen into figure out to down .how ated? the time you don’t him because No, A. it is not. the world? something Q. you Yesterday said very That true. A. think, have, might you I you Q. period critical And there is a time trying to you you What are think did. patient’s life? tell us? A. That is true. Well, again, depends the defi- A. it immediately Q. you And decided and when was preoxygenation nition tempo- pharyngeal put nasal first and et cetera. administered I think? rary measure Q. not— You are very step first That A. him I not preoxygenate A. upper airway obstruction. throughout period 15 minutes. doing you’re Q. And same time at the Q. him preoxygenate You did diagnosis. doing some you are also induction? wrong going find out what was You’re No, A. I did not. steps? through by going Yes. A. Well, next Q. go let’s And— what Q. you And want know that it actually it true step. isn’t Now problem? to solve the wrong and want Bob go give your plan ahead certainly do. A. you oxygen Hilden some 100% before time? you have much Q. And don’t down? attempted put tube (No response). A. A. Yes. time? Q. have how much You don’t be- Q. suppose that that was And I time. I don’t have unlimited A. do this before you planning to fore were than Q. had less time paralyze gave him the Anectine preoxygenated. breathe at all? him so he doesn’t’ right got MR. no you you BRASSEY: There is evidence have to—Did have to object. of that. I his It misstates testi- draw it? mony. already A. It’s drawn. THE COURT: Overruled. Q, port had to into the put You it and MR. just PEDERSON: I asked him a push it into vein? question. Yes. A. be quantify It would hard to how A. Q. just you push Can it all at one much time. shot? BY MR. PEDERSON: Anectine, yes. A. The you had Q. But would have more Q. you you And until wait see how preoxygenated. time would you have if long thirty sec- it takes. And that MR. BRASSEY: More time do to onds? you specific? what? Can more A. Yes. BY To MR. PEDERSON: solve the Q. thing And the first of all it first

problem. You understand what I am you prob- time to have takes some tell a talking about? lem. I would have had some more A. very A. In the case it took a short time. time, give period of and then the Anec- tine? Q. problem, right? You have squeezes bag. A. New

A. Yes. Q. you done And then have this Q. you we And know where times? zillion time-frame? many, many Many,

A. Yes. times. A. you get guy can’t air into a Q. And Q. you And have Anectine you ability have taken his going to see it’s to do? wait what breathe? A. That is true. In meantime A. Yes. squeeze bag attempting I’m still own?

Q. hisOn oxygen there. get A. Yes. Q. Without success? Q. gave you Atropine And him some A. Without success. or Anectine? Q. you feel didn’t like the And then Anectine, right A. you given enough? Anectine or had lungs paralyzes his Q. And that jaw and it was Yes. tested the A. breathe? couldn’t tight gave still so I the second dose. is true. That A. Q. jaw? to test Took some time Q. quantify you And are not able No, just up You really. reach A. you time, how much more but would wiggle mask it and off and take preoxygenate you

be able put mask back on. problem? had more time to work on gave Q. another dose And more time. Some A. anectine? Q. problem is first Okay. And that a few Again takes seconds A. Yes. pharyn- nasal by putting the went into push it in. in this geal into nose and back down syringes two Q. Okay. Did pack part of throat? ready go? of Anectine A. is true. That enough in one. There No. A. Q. that didn’t work? And for that new Q. you have to wait not. A. It did affect? drug to take Q. step then the next So —And head). (Witness shaking A. anectine, do given him this Q. Correct? I understand this you have to if Now, Q. your opinion today what Perhaps long

A. not as one waits injection. happened bronchospasm for the first stop? go let and wouldn’t wouldn’t Q. time take the na- Then it takes sal out? Exactly. A. No, is no that. A. there need for Q. you think that started? When do Q. it in? Just leave immediately af- A. I think it started A. Yes. ter induction. Q. nasal put it takes time to And venti- Q. you And never able to were down into the trachea? patient? this late Yes, A. sir. adequate I At no did A. time Q. to ven- you generally try And then post induction. ventilation tilate? you good Q. And no time did at (No response) A. exchange? Q. bag, hook You have to Exactly. A. machine, wrap it apparatus, ventilating Now, Doc- Q. understand let’s—You up to the tube the mouth? probably Eltherington tor thinks that A. Yes. bronchospasm? disagrees He wasn't Q. to do that? You have looking records? from at the A. Yes. bag. squeezing the A. I was the one Q. try you it? And then you Doc- Q. I But what know. know Yes, try to A. ventilate. couple of Eltherington said here a tor Q. success? Without ago? days Exactly. A. say I that. A. heard him Q. you the tube And then checked Q. you And treat the bronchos- did again? pasm? A. Yes. Yes. A. Q. tube? you And then withdrew the Q. How? Right. A. injection gave was Actually first I A. Q. put it you And back in? Atropine. that was as much And obstructions, so A. I no Yes. found bradycar- bronchospasm as it was I re-intubated. bronchospasm was treated dia.7 Q. you question had some And Epinephrine. cheeked you location or wouldn’t have its Q. Epinephrine? it? A. Yes. I A. knew that still could Q. anything And else? ventilate, improper could mean gave Em- It’s listed here but I A. know, or, you placement plugged tube manopoline. possibilities. several other drug Q. you common use Is that a preoxy-

The examination shifted back bronchospasm? try to reverse a genation: Yes. A. most Q. Now, your opinion Emmanopo- you give Q. When instances, after induction preoxygenation line? adequate? know, was, you it’s indeter- A. That Yes, A. indeed. into the some minutes minant. It was physicians Q. And are some there CPR. part country who in this even every single help? time? preoxygenate Q. Okay. Epinephrine And can you give that Actually Epinephrine, Yes, I’m aware that. A. (24th ed.). Dictionary Dr. Ball Bradycardia "abnor- land's Medical is the medical term for 7. pulse beat, down went evidenced testified Mr. slowness of the heart mal slowing 60’s, and to pulse Dor- in the 90’s to the rate to or less.” people Q. gave have an asthmatic condi- that the Was answers drug, tion and are critical? It is a time? classic adrenaline? A. is. That bronchospastic records,

A. And treatment of We have all seen these problems. summary, anesthetic Plaintiff's Ex- opera- hibit says and it has box that Q. give when did adrenal- complications. page tive I think that it’s ine? 1 if at it? Exhibit want to look A. That was about the same time. A. Excuse me. Q. disagree So let’s see. don’t We Q. You want some time to look at the bronchospasm happen. can A min- you context of what said? ago you ute me and I told didn’t know A. I it. No. was, it I it during where looked at Q. Operative Okay. complications? and the break aren’t most bronchos- Yes, A. sir. pasms of brief duration? Q. sup- guess you I that is where All bronchospasms A. I have posed put wrong? down what went past treated in the or did were not termi- A. That is filled in after the fact. in death. times They nate off lasted minutes, many Q. I you put am sure what didn’t down bronchos- pasm you mean brief. there? put tight lungs A. I

Q. down Well— synonymous. me was A. You mentioned earlier seconds Q. put You down bron- Yes. didn’t minutes. chospasm you that time. tell Doc- at Did Q. wrong? Yes. And that you tor were Ellingham bewildered very wrong. A. That is happened? what Q. testimony And that your under Well, A. I think the word he used today? oath I at that yesterday, bewildered. believe A. Yes. specific put time I him I couldn’t a told Q. Okay. Let’s take a look at he happened. finger on what deposition, page 45. Now, Q. you. Okay. Thank the sur- bronchospasm, question of coun- On the a gical you record remarks anesthesia from the doctor’s sel read doctor right-hand you list one over on the side deposition: put through events. You didn’t seven Q. give you trying I’m not a bad there, bronchospasm you? time, page guess 47. I I’m a nerv- little No, A. I did not. your I’m read going ous. answer Q. these You are familiar with question your answer that and—The I’ll records now bet? you gave to me under oath A. Yes. during your you May deposition. And CPR, Q. code? You called me whether that is the answer tell question? A. What was agree me then. gave ‘Would Q. for CPR? You called quote phe- bronchospasm me that rare A. Yes. your business?’ Answer nomenon running Q. everybody comes Because Question. say rare.’ ‘No. would not running in? Doctor Wood came ‘It’s not even Answer. ‘Uncommon?’? A. That is true. persist. for it to It’s unusual uncommon. stetho- Q. Wood took the And Doctor Question. usually limiting.’. self It's scope? persist?’? long usually does An- ‘How know, my ma- ‘Oh, stethoscope seconds minute A. I had a swer. use. ready for immediate most.’. chine at the lungs? Q. listened to the And he question Following reading, this was this A. That is true. given: was answer asked Q. And the Hilden nurse these records has Robert died before the hemor- reported good there ex- rhoidectomy began. air Dr. Ball adminis- change? general following tered the anesthetic drugs: first, sequence

A. I do not standard a com- believe that was Doctor fentanyl; statement that she record- Wood’s bination valium and an$ ing. then, later, pentothal. about minutes fentanyl The valium and are adminis- Q. It’s in the record? patient pain- tered to relax the and as a Yes, I A. know that. pentothal away pa- killer. The takes Q. And she wrote it down? ability on his tient’s breathe own A. After the fact. necessary muscles. After paralyzing Q. day? On the same effect, pentothal takes the anesthesi- I presume A. so. ologist patient by must ‘breathe for’ the questions and the doctor’s answers manually ventilating patient’s lungs. the close of the cross-examination were Dr. Ball was unable ventilate Robert these: lungs minutes after crucial Q. Okay. family You talked to the pentothal given. Robert Hilden day tragedy? on the of this receiving pento- died minutes after A. Yes. thal as a result of a cardiac arrest Q. you Did tell them that he died— brought about the fact that the heart That their and husband died father receiving oxygen. was not bronehospasm? The facts are not above contested. spe- A. I do not I did believe make a testimony also summarized the That brief cific statement. Klippert, expert of Dr. outsi.de Q. Okay. getting I’m close. General defense, testifying for the “Defendant’s ex- business, anesthesia is a serious isn’t it? pert, Klippert, an Dr. Steven anesthesi- Yes, A. it is. Falls, ologist practices in testi- who Twin Q. you actually people take close majority patients fied that vast bring to death and them back? receiving preoxygenates are those emer- mean, general A. You in the midst of gency surgery, preox- and that he does not you anesthesia take them to death? ygenate patients.” Klippert’s all obese Dr. Q. Yes. testimony established that he had been people A. also take We who practicing approximately in Twin Falls for bring to die and them back. years, completed that two and before a Q. I know that. And it is ac- never two-year residency in anesthesia at ceptable any place in country for a year Clinic one Cleveland Foundation and a physician subject patient a to unneces- surgery residency, plus and one-half two sary risk? years emergency physician. as an room unnecessary A. Nor death. explained On his direct examination he Q. job way put- Your another spinal general difference between a and a it, ting your give job patient it’s procedure, anesthesia in connection with something every you can in case break preoxygenation: goes wrong? lungs normally approximate- The contain through safeguard To him anes- A. ly hydrogen of the fact that because 79% thesia. percentage. the air we breathe has that Q. And to fail to do so is substandard Preoxygenation oxygen is where 100% practice? length administered for a of time suffi- safeguard A. To him is sub- fail nitrogen lungs replace cient to practice. standard being oxygen. purpose to al- patient go more time for the to with- foregoing excerpts of Ball’s tes- low breathing during or také appellant’s open- out anesthetic timony are summarized ing yourself. over brief:

Q. you say yourself, again virtually When take over He then asked you what do mean? Burley, question same in relation to the Idaho, very A. standard care: It’s common and almost rou- patient’s tine for anesthetics affect Q. Doctor, do have an to a breathing. It’s essential in most if not degree of medical certainty reasonable for us to cases assist breath- whether or the fact that Ball not Doctor ing especially Spi- general anesthetic. pa- [oxygen] didn’t 0’2 to this administer obviously they nals can still breath on tient induction 7:36 breached the own, anesthetic, general their but most 12, 1984, Burley, July standard care way of the time we do it such a applicable to him. standard care itself, breathing stops, we have straight-forward: His answer was we patient, breathe for opinion. A. I have an I do not believe patient after breathe we necessarily would be breach general anesthetic. standard of care. Q. through Is that for instance significance Of he did not state the stan- endotracheal tube? in Burley. of care He was not asked dard commonly Very A. necessar- Burley of care what the standard was. He ily- Burley stan- was not asked if he knew Q. Have used endotracheal tubes dard of care. before? Only that de- on cross-examination was Very frequently. A. veloped by plaintiffs counsel: Q. Now, put your patients Q. Now, you you. Thank never have general, you preoxygenate all under a do practiced Burley? over her patients? of those A. That is correct. No, I A. do not. Q. you But know the standard care Q. you percentage preoxy- do What preoxygenation as it relates to without genate? here; being is correct? ever preoxygen- I majority A. The vast do speak A. I I can with authori- believe emergency sur- are those have ate who Burley, ty of care for on the standard hav- suspected of gery because yes. recently ing having eaten full stomach Well, Q. the standard of care re- surgery do emergency need to and the preoxygenation really doesn’t garding opportunity to allow time eliminates Burley vary like to that much town empty prior pass for their stomach to to Twin Falls? surgery. to the A. No. to counsel being asked defense After witness, though asked a defense assumptions, Klippert, Dr. make certain degree testimony candidly frank opinion a reasonable gave which fact certainty or not the in critical helpful plaintiff’s medical whether case preoxygena- Mr. Hilden did aspects. answered and his death. He tion caused [Drips this text book is A. I have read explained his answer: beginning text book anesthesia] no, I A. No. I won’t claim entirety on occasions. two circumstanc- under those preoxygenation opinions ex- agree all the that I any make difference. would es I have said does pressed in here. What para- stated

not contradict what talking who He is someone graph. abut tube once the endotracheal Because adminis- induced and has anesthesia person to administer allows the placed, it baga mask and tering oxygen via a some very easy to normally oxygen it’s of relaxants. prior to the administration they become se- patient unless revive a stating preox- talking He is not lacking oxygen verely patients. I necessary ygenation time. majority Q. It much easier to take a can further state that the vast would be anesthesiologists routinely pre- person try do not thin him than it revive oxygenate patients. all of their There person? would be an obese few, granted. are a A. correct. That is Q. say- I have it You’re Could back? Q. anesthesiologist And ing says assuming that it that the tra- that? know performed, cheal intubation is neuromus- A. I would assume so. blocker, they preceded by cular should be Q. got Doctor Ball knew if he lungs provide several inflations of into and had to call the code as trouble oxygen. I reserve of want to see we going they call in and start CPR it was oxygen understand what is. reserve tougher bring him back than the you Is that meant what extra ordinary person? oxygen lungs your have in after speak A. I can’t for Doctor Ball. pure oxygen you have taken a bunch of reserves, increase the amount of is that Well, Q. should he have known that? what it is? A. He should have known that. A. Correct. I believe Doctor Ball at- Plaintiff’s also furnishes us with a brief tempted exactly to do that in this case. Elthering- synopsis testimony of Dr. done, Q. get But he couldn’t could ton, all of statements are correlated he? appeal transcript and on examination No, A. he couldn’t. are free of mistake: Now, Q. ordinary pa- this was no Elthering- called Dr. Loren Plaintiffs tient? ton, Anesthesiologist, a Board Certified A. That is correct. California, practices expert who as an Q. ordinary patient. He was no He testified that Dr. Ball’s fail- witness. agree Would with the other two wit- oxygen ure to have Hilden breathe 100% nesses testified he had who here that pentothal prior to administration of the compromised ventilation? (a practice preoxygenation) called overly pa- is common in A. It obese 47-48, 52-55, negligent, Rptr. pp. Tr. 76- tients. I did not examine or I have never death, and caused Robert Hilden’s patient, seen this so wouldn’t be able to 53-54, 58, 74-76, Rptr. pp. Tr. judgment render a on that other than to pa- Eltherington explained that a say obesity. that it is common morbid oxygen in his tient needs a reserve of Q. consequently to have a low interruption lungs to survive the oxygen reserve? oxygen pentothal takes supply after the A. That is correct. 47-48, 51-54, effect, Rptr. pp. Tr. and Q. going put And the doctor to who particularly that a sufficient reserve is patient this under anesthesia should take anesthesiologist the antic- critical when that into consideration? ipates difficulty ventilating patient, the That is one of the considerations. A. Rptr. pp. Tr. 55. He testified Q. Pardon? significantly in- this can reserve be the

A. That is one of considerations by having patient the breathe creased obesity. in (as morbid compared the pure oxygen to 21% the pa- oxygen atmosphere) prior to Q. Another consideration is that the upper airway patient. an may pentothal tient suffer from without risk to you and won’t be able to Rptr. pp. obstruction 54-55. Tr. intubation?

breathe without that Dr. Eltherington Dr. also testified That is correct. A. difficulty anticipated Ball should have you agree me Q. lungs Would also with manually ventilating Hilden’s be- person obesity, of this this that CPR on weight approximately of Hilden’s cause — heavy, that CPR would be difficult? recognized pounds should have —and have oxygen reserve would Yes. A. compromised weight gets his and the oxygen into trouble with lack of respiratory depressants, Rptr. pp. Tr. 45- his to heart and brain and and liver 46, 50-52, 63-64, and fentanyl. valium kidneys. just more You have time be- Eltherington sitting in you oxygen testified that have more anesthesiologist lungs give you standard of care for an to the time. The patient mandated that a of Robert Hil- keeps picking up oxygen blood and weight oxygen den’s big be you 100% reserve start off with this receiving pentothal and that Dr. you which allows to deal with difficul- negligence. Ball’s failure to do so was ties. Q. How should this case have been Q. danger giving Is there handled? oxygen prior to induction anesthe- get A. You like to much sia? backup as It’s possible. wearing like Rptr. pp. Tr. A. None whatsoever. suspenders, I If you belt and think. 54-55. lungs oxygen, in fill the with other Doctor, Q. want to talk about words, Mr. when Hilden first arrived (sic) principal that we use law operating put you simply room an these actions called in these cases the him, put it oxygen mask on and on you community standard of care. Do doing lightly tell what and knowledge have actual of the commu- oxygen. he breathes Even 100% nity standard of care as it existed drugs though depress mil his it Doctor applied this in 1984as case though breathing and the anes- even taking Ball consideration his back- into depress breathing thetic will his ground training? relaxants though even muscle Yes, I A. feel I do. stop breathing, will him has big So it oxygen. bucket full of gives on airway Q. you time establish an based Do patient certainty and/or intubate medical reasonable whether providing him with his carry breath- appropriate standard care (sic) mandatory if ing. July And that Doctor Ball maintained you’re dealing patient where 12th? 1984 on the may you suspect that there be Yes, A. I do. difficulty ventilating and mak- some Q. opinion. is that What bag him and a or mask and ing breathe intubating putting a him and that is within A. it thinkable Is airway. Without that the tube imagination that could your no are so small time reserves anywhere to treat this of care standard Rptr. pp. Tr. 47- get it intubated. anticipate problem patient and way done in this case? they were you’re necessary A. ... what Rptr. pp. Tr. 76-78. A. No. It’s not. respira- depress going deliberately Eltherington Dr. Ball’s testified that Dr. breathing, you need more re- or tion oxygen Hil- to to administer failure 100% get serve, you more re- way and the deprived him prior pentothal the den to simply patient have the serve to oxygen he needed the reserve of of that oxygen. What breathe 100% oxygen the interruption in the survive does, opening putting is or an- it like man- attempted to supply Dr. Ball when that when hose in the bucket so other pp. lungs. Rptr. Tr. ually his ventilate stopped, has breathing the been all of Eltherington that explained Dr. 53-55. this much drugs you now have the ventilating problems Dr. Ball had when you can oxygen so that reserve of Hilden, ran oxygen of Hilden’s reserve minutes three or take five four oxygen, and out, no the heart received you estab- minutes maybe six before muscle died. patient the heart airway that this lish before Now, A. ... what do is shut the PART III spigot You simply tap, off. the close Notwithstanding non-divergence this patient and the now cannot breathe testimony care, i.e., on the standard of in paralyzed he is because and he can’t be anesthesiology, field district because tongue ventilated his and all gave court an instruction which in huge tissue neck has fallen needed, and, fact, in instruction windpipe, down his it over takes very point on the where defendant has his minutes, whatever, put four the in- to witness, Klippert Dr. testify without first tube during tratracheal that four establishing applicable that he knew unfortunately minutes time reserve standard care. As above in ex- shown gone, get is and his heart doesn’t cerpts testimony, from the Klippert Dr. enough oxygen I really and he dies. standard not deviate. think happened that what with this Nevertheless, gave the district court patient. Rptr. pp. Tr. 53-54. community usual standard of care instruc- Q. ... do have an based tion, i.e., judged that be in Dr. Ball shall certainty on reasonable medical comparison similarly qual- trained and what difference adherence to that stan- in physicians community. ified the same dard of care would have made Bob explained court community And the that Hilden? geographical refers area served mentioned, A. I as I think think if I County Hospital what had be the Cassia patient had been preoxygenated Burley. very beginning injec- from the of the very This instruction could in- well drugs tions of allowed re- jurors duced in the the belief that where serve, patient might think well appears Dr. Ball to have local been have been resuscitated. anesthesiologist, his could not actions Q. Okay. judged light testimony of Dr. go step further, my patient A. I’ll one Alto, Eltherington, from Palo California in my opinion would not have arrested (notwithstanding prac- Ball had place. Rptr. p. the first Tr. California). Barbara, ticed at Santa Con- Eltherington As Dr. explained, Dr. ceded, speculative, it it is not wild provide Ball’s failure to Hilden with the speculation. There would have been no oxygen necessary subjected reserve Rob- speculation room the instruction has ert unnecessary Hilden to risks. Be- not been used in this case. cause of Hilden’s oxygen reduced re-

serve, Ball was unable to ventilate the PART IV

lungs prior cardiac arrest and death. Equally accurate is the statement The real fault in the instructions brief as to the standard of care: open plaintiff’s honest debate. The re- quested

On one issue there instruction on was no conflict cause had expert testimony. All physicians judicially approved many, tes- been —used tifying concerning many suggested by of anes- times. The standard instruction Appeals testified judicially thetic care was no the Court there geographic created, gratuitous wholly variation but arose standard out anesthesiologists care for relates to The “but for” instruction can- comment. preoxygenation. Rptr. pp. judicially approved Tr. 76-78 not be said have been (Dr. Eltherington), pp. (Dr. Ball), taking place 372-737 what is to- (Dr. pp. Klippert). day. 457-458 Dr. Ball also there Unless is a turnabout always Court, testified that it was of judicially approved, a violation it is about to be of poor unsuspect- standard care for off anesthesi- and foist law on to an ologists patient ing citizenry to submit the to unneces- of Idaho. It become a will sary Rptr. p. attorneys. of harm. risks Tr. 405. new tool for defense standard, you got mere fact has met have committee then find his toyed giving of favor. with the that instruction judicial ap- does not mount to the level of Now, one of these instructions talks proval preponderance even there were two mem- of evidence. about —not if plaintiff you has chairing bers this told and the Court Court the committee. of you plaintiff ten, instructed that the has twenty, It is not doubted that or even a prove you his As the told case. Court magistrates, of hundred committees dis- case, initially anybody in this can file judges, trict and barristers could be formed here has come lawsuit. Defendant down factor, and it. condemn Substantial how- You to decide if and defended it. have ever, is seen an unfair instruction if they prove it. to decide can You have proper case where there are at least two wrong, somebody something you did contributing negligent acts omissions. this have to decide if what he did caused In this case there is Mr. Hilden's but one. It you’ll man’s death. And read that. fact, it weight excessive is a does not but persuaded considering says you must be and, assuredly, amount to an act more of that the the evidence in this case negligence. act of As an a matter fact party proposition on which the has gastric undergone stapling he in order proof is true probably burden of more weight. to curb decrease plaintiff has than That is what the not. my reading I suggest to brethren the do. King’s Joseph comparatively H. Professor easily 1980- short and read article They thing. They said Doctor said one Journal, 1981 Yale 1353-1396. At Law pa- preoxygenated Ball this should have states, he page 1356 informs us that tient, didn’t, patient he and because cases, instruction where the “but for” they And That is what died. it. being given, it is re- has been heretofore case, Now, you're going to in this said. placed by factor” instruc- the “substantial questions have to answer tion. you de- negligent, or was he doctor says, by de-

termine that the instruction termining if fell the standard he below PART V didn’t, he he didn’t care. If then breach hay It now in order to see how much that, Now, part second that care. able to make capable defense counsel was proximate cause. to find is given by by capitalizing on the instruction legal of a term and it is kind That is a In his sum- sponte. court the district sua term, funny That but it means this: jury, counsel mation to the defense ex- death in —Mr. it be to plained easy how would not have occurred case would to Dr. favorable reach a verdict—a verdict or omission the act defendant Ball: is a substan- act or omission would have death tial dealing malpractice with a We are factor. If preoxygenation, regardless resulted plaintiffs have said case. What did, isn’t the Ball then whatever Doctor the law prove and what what proximate cause. prove my com- says they must client malpractice. The words mitted you’re going to see is stan- gentlemen, your

instructions verdict Ladies and form, never probably right of care. You have down dard have write I’m read objective question. going means heard of that. It’s answer to a defendant, Doctor judge you. someone’s behavior. Was which we can Ball, way negligent we can do that and James That is of the death of proximate cause sets that standard. was the why the law that is two to answer You have got did he Robert Hilden. to determine And negli- That the things question. if in one he didn’t meet that standard? of care. the standard did, gence relates to if he so find. But you should Did he fail properly pa- care for this readily little seeing trouble that “what- tient, and did that failure cause the ever Dr. Ball did do was a [or didn’t]” Now, death. proximate read that contributing substantial factor. very instruction carefully. Because is, says what it that an admission for OPINION ON REHEARING (sic, omission) act or by the defendant proximate be the cause you must find BAKES, Chief Justice. plaintiffs damages, case, death in this granted This plaintiff appel Court would not have occurred but for petition lant rehearing for which act or omission and such act or omis- issue, i.e., raised one the correctness sion was a substantial factor, not the original conclusion in our general anesthetic, drugs not the that the trial court by giving did not err given, were it was the failure preoxy- Instruction proximate No. cause. As genate. That is it. That is the issue. original our opinion pointed out, in negligence? Was that And did that struction was based on question. cause his death. That is the IDJI de proximate fined cause as “an act or omis Defense counsel full well realized what sion a defendant” which caused the argument doors of were opened for being plaintiff’s damages, damages and which him when the judge district stated that he “would not have occurred but that act going for give jury was the “but for” omission, and that such act or omission instruction which he had discovered in the was a causing substantial factor in Challis and Crosby cases. That instruc- damages.” (Emphasis added.) In its brief tion inappropriate for the scenario support petition of its rehearing, presented. which this case Defense coun- appellant acknowledges that the “but for” sel every right to make the most of it. language in Instruction No. 4 is taken from fact, In my view he obligated to his IDJI 230 and is a prox correct definition of so, and, client to do in doing so he under- imate However, cause in the usual case. took to jury tell the nothing which was not appellant argues that there is an exception within the ambit of the instruction’s lan- general to the rule of proximate “but for” guage. dead, Bob Hilden was make no causation applies in cases in which mistake about that. The fault in the “but there multiple causes, “forces” or all of for” instruction was in telling jurors which are a in bringing substantial factor could not find causal fault on the about the plaintiff, death of the but some part of the defendant unless the widow and of which are not attributable to the defen prove children could that but Ball’s Appellant argues dant. that in such omissions, multi acts or Bob Hilden would not be ple language cause cases the “but for” dead. That prove would be to negative. (and Instruction No. 4 IDJI Instruction The law which given, should have been 230) Appellant is an incorrect instruction. and which always in such primarily upon (Sec relies the Restatement circumstances, is whether the found ond) Torts, 432(2), and the case of § Dr. Ball’s acts or omissions to be a sub- Kotzebue, City Wilson v. 627 P.2d 623 contributing stantial factor. Contrary to (Alaska 1981). law, counsel, defense because of the instruction —as he read it jurors— (Second) Torts, Restatement say was able to say of the critical 432(2) states: § cause, probable element of “If the death (2) If actively operating, two forces are regardless resulted preoxy- one negligence, because of the actor’s genation, then WHATEVER DR. BALL the other not because of misconduct DID, isn’t the case.” part, on his and each of itself is suffi- may bring another, While proxi- have been the cient to about harm to cause, mate person fair-minded on an may actor’s be found to be a open-minded reading of testimony, bringing has substantial factor in it about.

334 quotes language Hilden then cites and Alaska in proximate- the of IDJI 230 the Kotzebue, City case of Wilson v. which cause Instruction No. 4. of stated: denying In Hilden’s motion for new trial Abbott, As we in stated [State v.] [498 issue, this on same the trial court relied on (Alaska 1972),] P.2d 712 the for” “but case, Appeals Idaho of the recent Court inapplicable test is there when are two State, Irrigation Company 107 Challis v. (or more) forces, one itself and each 338, (Ct.App.1984), Idaho 689 P.2d 230 injury. is sufficient to cause the Id. at analyzed which the of decisions this cases, In such the “but for” test regarding proximate law of Court the in does work because it would result cause, explaining: being liability. force of each absolved concept proximate of cause contains 432, (Second)of See Restatement Torts § fact, components two in and —cause (1965). Illustrations 3 and 4 at 431-32 scope legal responsibility.1 W. of PROS- 627 P.2d at 630. The court in Alaska Wil- SER, THE LAW HANDBOOK OF OF son v. Kotzebue relied on their earlier case 1971). Here, (4th 41-42 ed. TORTS §§ Abbott, (Alaska of v. P.2d 712 498 State upon our focus is cause in fact. 1972), explained: cause, Proximate in the sense of cause Normally, satisfy in order substan- fact, has been defined as a cause factor tial test it must be shown both “which in natural and continuous se hap- the accident would not have quence, by any efficient inter unbroken pened negli- “but for” defendant’s cause, vening produces the result which gence so negligent and that the act was v. would not occurred.” Smith important bringing injury 426, 172, 420, Sharp, Idaho 354 P.2d 82 regard a that reasonable men would it as (1960). v. 175 See also Chatterton Poca it. responsibility cause and attach Post, P.2d tello 70 Idaho 223 389 is, however, excep- significant There one Co., (1950); v. Boise Traction Pilmer requirement: if to this concurrence tion (1908). compo 94 P. 432 This operating forces are to cause two nent of cause embraces two negli- injury, one because of defendant’s First, not, gence closely force elements. an event and the' other each related injury, succeeding cause the by itself sufficient to is the in fact of a event cause negligence may be succeeding then the defendant’s only if event would not bring- be factor in found to a substantial prior event. have occurred “but for” the harm. ing Thus, about the or omission not cause an act damage damage ensuing in fact if the of (emphasis original). 498 P.2d at 727 likely anyway. have occurred authorities, foregoing ap- upon Based requirement that the second element is a argues rehearing that because pellant on factor” in be a first event “substantial “forces” or multiple case involves this succeeding producing the event. Mun death, of not all of which were causes Ball, Department Highways, Dr. son State to the defendant attributable of (1975). P.2d 1174 including the for” 96 Idaho erred in “but trial court responsibility for the part law extend the con- definition of will 1. This second half of two "proximate Pros- consequences has been described which have fact cause” duct to the having stated, very little to do Quite ser & Keeton as this been occurred. often has so, factual causation. properly wjiether issue as an causation, it is duty plaintiff, with which the fact of Unlike defendant is under confused, ["scope hopelessly of le- often protection duty includes or whether problem primarily gal responsibility”] consequences. against is not a This such depend on It is sometimes said law. causation, question question fact, or even significant so conduct has been whether the but far removed both: important a cause that defendant attempt in such has led deal with it terms sig- responsible. legally But both should confusion. and can lead to utter upon importance turn conclu- nificance and 42, (5th § ON TORTS PROSSER AND KEETON legal policy, so that in terms of sions depend 1984). ed. essentially policy of whether Thus, defendant, Ball, single neg- a defendant’s conduct is the on trial for fact of an event it ligence, no other doctor health care material element and a factor substantial provider mentioned the evi- PROSSER, bringing about. W. su- having guilty dence as 240; (SEC- pra, at RESTATEMENT which caused contributed to the death of OND) (1965). OF TORTS 431 § any There request Mr. Hilden. was no that 343, providers placed 107 Idaho at 689 other care P.2d at 692. health be special jury negli- the verdict If the form. jury At the instruction conference the gence hospital per- other of doctors or case, trial plaintiff’s court evaluated the been a cause the sonnel had “force” or of claims, and plaintiff’s the nature of the Hilden, death of Mr. then their properly order to choose the instructions to by the would have been evaluated given jury. to the At that the trial time though they par- made proposed court a instruc- even not been composed tion the of paragraph Special first ties to the action. Lasselle 4, Requested Co., Plaintiff’s Instruction No. and 106 Idaho 677 P.2d 483 Products language the second half the causation (1983) (“As stated in Pocatello Industrial from proxi- IDJI which is the standard Inc., West, Park Co. Steel [v. language mate cause instruction. in- That (1980) P.2d the reason for the 399] phrase for” appel- cludes the “but of which apportionment rule is that ‘true cannot be n however, complains; lant now appellant did apportionment unless that in- achieved objection not voice language to that negli- guilty cludes all tortfeasors of causal the instruction conference. gence causing contributing either to the question, Appellant they now occurrence or not contends that the trial whether ”). court recognized plain- parties should have are to the that case.’ entire against tiff's claim Dr. alleged plaintiff’s Ball thrust of case that it was multiple there were “forces” or causes solely defendant breached the Dr. Ball who death, just which caused Mr. Hilden’s not a community the of local standard care single cause, and therefore the court failing pre-oxygenate Mr. Hilden before should have followed the decision the anesthesia, inducing which breach was the Supreme Alaska Court in City Wilson v. proximate cause of the death of Mr. Hilden. Kotzebue, supra, given and not “but the case the upon was based testi- Plaintiffs’ However, for” assuming instruction. even mony expert their medical witness Dr. that the for” language “but causation Elthrington, the who testified that cause of inappropriate multiple IDJI 230 is in a subsequent Mr. cardiac arrest and case, reviewing “force” or cause after pre-ox- the failure death was of Dr. Ball proceedings record of the trial to the up patient. Elthrington ygenate Dr. said: conference, date giv- of the instruction patient pre-oxy- I think had been ing presid- judge deference to trial who genated very beginning from the of the proceedings,2 ed over all the cannot we drugs injections of and allowed that re- conclude that the trial court in view- erred oxygen], patient I think this serve [of case, ing single this as a “force” or cause might have been resuscitated. well there is no for the therefore basis First, appellant’s claim. there acknowledge preeminent plaintiffs position position

2. We of a evaluate the nature of the evaluating judging judge appeal trial such The trial is a court on claims. claims than proceedings judge hindsight presides proceedings over all of the in the from a cold record. court, beginning Particularly, regard of the trial issues to the evaluation where the claim, by pleadings, pretrial support discovery, are evidence in formulated conferences, unique position to evaluate and trial to the trial court is in a trial where case, parties prove claims then submit evidence to evidence to the their how that being relates litigants. Accordingly, finally we the instruction conference attor- with the made neys arguments jury. give trial court’s and the final to the Be- substantial deference to the participation stage of result in the cause of his at each of the issues which evaluation proceedings, judge jury. trial the trial is in a better court’s instructions to the further, my I go step my patient majority preoxygen- I’ll do one vast [that] emergency ate are who have sur- would not have arrested those suspected of place. gery because hav- first ing having recently full stomach eaten When asked what difference absence surgery emergency and the need to do in this pre-oxygenation would have made opportunity to time eliminates the allow case, responded, Dr. Elthrington “I think empty prior pass for their stomach patient made the difference between surgery. So to summarize if being dying having good chance they have food still in their stom- believe of his tes- resuscitated.” At conclusion having recently eaten and there ach from timony, Elthrington stated: enough digest time for stopped beating my opinion the heart [I]n through pass the orifice and it’s like- enough did not have because heart ly pass it will in a time ... oxygen patient re- because the had no preoxygenation in proceed we’ll the begin serves to with and those reserves emergency. during time he did have were utilized the Q. people the that In obese get lungs, by that it took to air into anesthetic, they are put general under patient’s time the heart had died. preoxygenated? all defendant, hand, pro- The on the other A. are No not. testimony expert denying duced medical produce not evidence of The did Dr. stan- that Ball had breached the local multiple or causes which other “forces” the by failing pre-oxygenate of care to dard bring to were themselves sufficient In patient response Hilden. Mr. Hilden, of and which were the death Mr. opinion as to a question, “Do have an omission on the not act or related certainty degree of medical reasonable appellant’s Nor trial part Dr. Ball. did of not not fact that did whether or opening closing argue, either in or counsel Rob- give oxygen to induction caused multiple causes arguments, that there were death,” Dr. testified: Hilden’s Ball ert death, not all of which for Mr. Hilden’s Well, preoxygena- I do not believe Dr. Ball. to the defendant were attributable case, significant in this tion would asserted, Rather, both Hilden’s counsel actually post intubation because closing arguments, opening and post anything or I was even Anectine negligent death was cause of Hilden’s any quantity to move air of still unable pre-oxygenate Hilden Dr. Ball to failure of However, the air mentioning. worth administering general anesthesia prior to to be oxygen or able been able result, and, oxygen had no Hilden as a then bag, with the moved in and out until his his heart reserve sustain And problem. have been no there would artificially. breathing supported could be oxygen in the that extra don’t believe argued: counsel In Hilden’s opening, at all. beginning would have altered that disagree may] with the defendant [The post only immediately The fact that not conclusion, being conclusion and that induction, throughout the next al- for Doctor well, acceptable care it was impossi- still most 45 minutes was well he things way did. do Ball to [A]nd air in and out. adequately move ble it is never going is to show that proof Klipperdt, prepared Dr. produced also not to be acceptable The defendant care might happen. ex- And anesthesiologist, something you rendered an know who an gen- to take a degree acceptable care opinion, to a reasonable it’s never pert ability to Dr. his deprive him of certainty, that the defendant tleman medical care not take necessarily normally local breach the breathe did not Ball you’re consequently Idaho, oxygen fail- needs. Burley, of care standard conclusions, that Klip- to two patient. going to come preoxygenate ing to gentleman was given to this the care preoxygenate did not that he perdt testified why he died. is and that substandard stating: patients, of his death, closing argument, In of Mr. Hilden’s counsel “forces” causes again pre-oxygenating asserted that which all of were attributable to the patient deprived Ball, Mr. Hilden the of the defendant Dr. oxygen carry necessary reserves him that therefore the IDJI No. standard through period when he could not language, inappro- for” with its “but himself breathe for and before the intuba- priate Although appellants in this case. breathing tion and com- artificial routinely “object the instruc- all of menced. us,”3 proposed ap- tions were not problem goes to that reserve. The pellant’s apprise counsel did not the trial reserve level so low couldn’t handle court at the instruction conference of hardly any oxy- time amount of without making appeal it is claim now gen. even mention the cause instruc- Accordingly,

tion. the trial court was left solely plaintiff’s to evaluate case based We don’t back off from the that the fact upon analysis preoperative period key. its evidence admitted use trial, being oxygen preopera- the reserve of the and the claims then made. tively key. just you record, upon attempted It’s not are Based saying pre[-]oxygenate every- I should place solely the cause death on Dr. body[.] saying that in this cir- We pre-oxygenate pa- Ball for failure to compro- cumstance individual with tient, understandably trial court chose fighting mised ventilation deserved a the standard IDJI Instruction No. 230 as chance. the correct instruction to in this case. counsel, closing argu- Ball’s ment, acknowledged singleness ap- of the upon appel- The Alaska case relied the pellant’s claims: lant, Kotzebue, City v. 627 P.2d Wilson of Now, thing, plaintiff the has said one (Alaska 1981), support appel- 623 does not plaintiff one thing only. The hasn’t said position. lant’s The Alaska court in Wil- general that anesthesia was a bad idea. appeal son refused on subdivide es- They They said agree haven’t that. with single-cause sentially case into various mul- They agree general that. anesthetic tiple purposes “forces” causes for way go They the in this case. determining type prox- whether a “but for” say drugs improper. didn’t the were imate cause instruction should have been Elthrington they Doctor testified were given. up- The court in case Wilson They used all the time. have been used giving type proxi- held the “but for” on patients they millions of still are instruction, stating, mate cause “Under today. They complain don’t about that. case, theory Wilson’s of the for the They complain got don’t Ball that Doctor city’s negligence various acts either Elthring- tube in trachea. Doctor there would have been no fire or would They ton said that where was. don’t it, injured by injuries or his have been say dosage drugs are bad. would so The not have been severe.” Alas- They They one thing. said said Doctor though ka there court then held that even pre-oxygenated pa- Ball should have this alleged were various acts of tient, didn’t, patient and because he this city, there was been committed they died. And that is it. That is what only single plain- “force” cause of said. i.e., city’s injury, negli- tiff’s the defendant gence, appel- type prox-

At the a “but for” instruction conference and therefore court, proper trial as in- they lant did not advise the imate cause instruction was the Court, exception assert in this were we re- now struction. “The which contending multiple apply.” there were ferred to in does not “This Abbott pointed original opinion, requested As out in our instruction. part plaintiffs No. first of Instruction 4 was [multiple is not such a case.” 627 of Bob Hilden in their widow children cause] attempt gain wrongful redress for his P.2d at 680. however, general, In it does have to death. allegations upon Based and the evi- letting do that in the them know Rail- court, dence before the trial and the state- Court, being caught box case the counsel, ments of or the lack thereof at the case, great gave error as in Hilden’s conference, instruction we conclude that petition re- shorter shrift indeed for choosing the trial court did not err hearing. awarded a The Hilden heirs were jury using IDJI instruct the the standard rehearing. The minutes of clerk of defining proximate 230 instruction cause. necessary two will reflect that the court Accordingly, adhere to the views ex- we Huntley and votes were cast Justice pressed original opinion. in our rehearing has Bistline. The Justice page opinion, had. Court’s nine McDEVITT, JOHNSON, BOYLE and dissenting appended, view is which JJ., concur. gives counsel for the some indication that BISTLINE, Justice, dissenting. caught plaintiffs least the Court’s Hilden at rehearing. attention on the Mention need be made this Court’s opinion in Rail State Tax Commission up majority opinion clears This second (1989). Co., box 116 Idaho 782 P.2d (left opinion), impression by the first opinion The Court’s stated: “We note plaintiffs guilty request- that the were Commission has the outset the Tax ing the instruction which Instruction No. authority proposition submitted no for the obviously deprived them of chance regulation.” disregard shows, own may opinion that it its recovery. myAs earlier its 782 P.2d at 33. In Idaho at con- changed majority and the now rehearing, Tax petition firms, responsible Commission plaintiffs were not challenged validity statement. in In- erroneously damaging language of that re- challenge well-taken. The Tax 4. The struction No. quested only paragraph, had cited K-Mart the first Commission’sinitial brief Com’n., 111 Ida Corp. v. was: Idaho State Tax 719, (1986),

ho 1147 and relied 727 P.2d expression ‘proximate I use the When On the critical heavily upon which, that case. cause,’ I in natural mean a cause Railbox, point in the cases were involved dam- sequence, produced the probable supporting point brief par. on Railbox's not be age complained of. It need error, just but ed to the Court’s error —not It is sufficient if concurs only cause. four concerning which acting a bold misstatement same with some other peti it, on denial pages time, teen were written in combination with Beyond no avail. rehearing tion for damages. causes —all could see understanding is how the Court compre- to earlier majority’s The failure unjustifiable up to its two no need to face No. only much of Instruction hend that course, was, of in de The first mistakes. undoubtedly plaintiffs by for 4 was asked Commission claring that the Idaho Tax thinking in majority’s both has flavored the authority. Second to cite failed request- opinions. The instruction of its was, having its attention on even worse for not invented plaintiffs was by ed misstatement, its reaction first called its controversy, but rather Hilden-Ball in the sand its head bury was to collective time-test- ancestry, and is a good comes ostrich, which was done proverbial like the' still, proba- fire ed instruction. Under rehearing. summarily denying a by forevermore, court’s addi- is the district bly paragraph the “but for” second to tion of nothing particular in which has All of No. Instruction 4.:4 dealt to court’s rebuff do with the plaintiffs When the defendant. attributable to that the record shows of the clerk's 4. Perusal motions, post-judgment the defen- their request filed instruction did not defendant de- objection offered a thereto and dants filed for” was proximate The "but clause cause.

339 First, in fact of a For an act or omission a defendant to an event the cause proximate be a cause of a dam- succeeding event if the succeed- plaintiff’s find ages, you must that the ing occurred event would not have damages occurred Thus, event. an “but for” omission, that act or and that such is not the cause in act or omission act or omission was a substantial factor damage damage ensuing fact of causing damages. in anyway. likely would have occurred proximate An act or omission is not requirement is a The second element plaintiff’s damages cause of a if the dam- that the first event be a “substantial ages would have occurred without such succeeding producing factor” act or omission. (Citation omitted.) Thus, a de- event. added.) (Emphasis fendant’s conduct is the cause fact only if it a material pointed my of an event

As was out exhaustive earlier, dissent submitted the author of the element and a factor substantial majority opinion selectively making (Citation omitted.) avoided bringing it about. any analysis opinion, district court’s added). (emphasis R. 208 The district choosing though rather to write as there court on to note that the ‘same went pointed was not one available. The dissent language recently has been used Cros to the district court’s review: Co., Machinery v. Roward 111 Idaho Quick making district court its (1986).’ 414 Here the dis 729 P.2d review careful to note plaintiffs’ trict court was somewhat in error. That contention that the ‘but test con for’ language opin appear Crosby does tained in the paragraph second was not ion. The district court’s citation to that appropriate. The district court defend it, too, impression case leaves the giving ed the of this instruction as opinion Supreme from the Court. serting Supreme Idaho Court ‘[t]he However, Crosby the Challis and the ’ cause,” recently “proximate has defined opinions from the were both Court State, Irrigation 107 Challis Co. v. Ida Appeals. aptly put, the More Idaho Su 338, 343, ho (Ct.App. P.2d preme responsible ei Court was not 1984), quoted excerpt and then Crosby ther the or the Challis upon placed: Challis which reliance was opinion. responsible was it for a [Nor concept cause con- sequel third ‘but for’ case where the fact, components tains two —cause involved, same instruction was Edmark (Ci- scope legal responsibility. Inc., Toyota, Motors v. Twin Cities omitted.) tation ... (Ct.App.1987).] 727 P.2d 1274 cause, Proximate in the sense of upon language in Based found fact, cause has been defined as a Crosby, the district court Challis cause “which in natural and continu- reasoned that: sequence, by any ous unbroken effi- plaintiff has the bur- The that the cause, intervening produces cient fact proving neg- den of that a complained

result of and without defendant’s ligence was a substantial which the result would not have oc- factor (Citations omitted.) plaintiff earning damage does curred.” This component plaintiff proving proximate cause em- not excuse the closely injury braces two related elements. would not have oc- giving provides fense for the court’s of the “but for" of Robert Hilden’s death. It also “Likewise, instruction: Instruction No. 4 is a apportioning percentages of fault to the doctor proper statement of the law in Idaho concern- special and to Hilden. The defendant’s verdict cause, ing proximate and the Court did not err Appendix form is attached as A. As this dissent R., providing jury with that instruction.” discusses, exactly any way how Hilden was in special 214. Defendant did submit a verdict the cause of his own death will forever remain gave recognition clear to the issue form which great mysteries of the one of the unsolved negligent being whether defendant was world. negligence proximate was a whether that dissent, part In a footnote to this of the neg- curved “but for” defendant’s it is stated: ligence. No. 4 is also con- Instruction (Rev. sistent with revised IDJI 230 no tes- There is no contention also 7/87). plaintiffs presented timony or kind whatever evi- evidence ill, dying, Hilden or in that Mr. preoxy- failure to dence that Ball’s emergency situ- It was not an extremis. of Mr. genate was the actual cause ation, operation where the sur- but an death, presented but Dr. Ball fully geon Dr. Ball had collaborated evidence that Mr. Hilden would have to the details. No witness in advance as Thus, it necessary anyway. died that Mr. Hilden would have for the instructed on all testified be he day irrespective whether died that cause, including aspects proximate preoxygenated. been Justice portion for” the so-called “but Bakes, only by deigning to address not instruction. opinion, thus the district court’s has far (emphasis added). R. 208 Here the dis- coming been able to avoid face face trict court erred in equating ‘a district court’s assertion with the equivalent cause’ as the of ‘the actual presented Mr. evidence that Dr. Ball cause.’ The court also on 431 relied § anyway. would have died Hilden the Restatement of Torts: Id., (emphasis at P.2d at 1127 added). original and states, legal Sec. 431 defines cause. It today’s opinion Chief Justice Bakes “The In negligent actor’s is a conduct le- greater length than at has now written gal (a) cause of harm to another if may may majority opinion, and the first bring- conduct is a substantial factor continuing to adhere the earlier not be harm,____” ing about the The Com- he holding against plaintiffs because following ment immediately Sec. 431 vein, i.e., that a different now writes in states: objection to that they not voice "did legal In cause of anoth- order to a con- instruction language at the for] [but harm, enough er’s it not Rehearing, Opinion on Majority ference.” harm not had the have occurred at 787 P.2d at 1143. In the 117 Idaho (T)his negligent____ not actor specific he less when opinion was earlier ’ it necessary, is not of itself suffi- generally objected “[a]ppellants wrote: cient. must also be they did not jury instructions bringing substantial factor however, give the propose; plaintiff’s harm. poten- correct opportunity to court an trial stating specific reasons for errors tial Torts, (Second) of Comment Restatement in- given proximate cause objecting to the p. 429. Id., 787 P.2d Idaho at struction.” be, not, and should 207. There R. inexpli- if that be an way, Either at 1125. factor’ any problem with the ‘substantial awarding the basis for not cit the instruction. Substantial portion of error, I recom- will free such second trial degree of more than trivial connotes comprising judges the four mend to slight. Country fairly recent case of majority the conclusively established had been If De- Company Agricultural Insurance going to die that was Mr. Hilden 961, Inc., 695 P.2d 107 velopment, preoxy- irrespective of the failure to day, painstakingly (1985),where this Court 346 analysis court’s then the district genate, plethora of amend- through tracked sound, nothing for remained 51(a)(1) discovered Rule ments to to; it Bakes attend Justice 1976, 2, July made amendment the district court’s to set out sufficient viewing collected which, facility of for it. opinion and affirm 107 See hereto. B attached Appendix in 348, special 963, at 695 P.2d Idaho at (emphasis 1127 787 P.2d at 117 Idaho 2. footnote directed to attention added; omitted). original footnote 341 Court, (Rev. 7/87). today’s opinion plain- In for Chief revised IDJI 230 Justice Bakes assumes for” presented that the “but evidence that Dr. Ball’s tiffs language inappropriate causation in a preoxygenate failure to was the actual case, multiple by “giving but defer- death, cause of Mr. Hilden’s but Dr. Ball judge presided ence to the trial who ... presented evidence that Mr. Hilden we cannot conclude that the trial court Thus, anyway. would have died it was erred____” 117 Idaho at 787 P.2d at necessary jury to be instructed for judges All trial are entitled to defer- cause, aspects in- on all simply they judges. ence because are trial cluding portion the so-called “but for" My opinion now is and has been that this the instruction. finest, particular judge trial is one of the added; omitted). (emphasis R. 208 footnote I will say but not be the second to that manner directed judge beyond committing is not error. find for Dr. Ball unless it could find from me, Nothing gratifying would be more that, notwithstanding the evidence well, certainly to the than proof negligence part of causative on the justices joined that the six who have Chief Ball, plaintiff prove of Dr. also had to Justice Bakes on now two occasions would negative, namely, that Hilden would not join again also him in an which at anyway. absurdity. have died This is an Judge the least allows Granata to reconsid- especially This is so when not one of four ruling, just past er his as we did this week experienced justices any support can find Carroll, 788 P.2d 117 Idaho Heitz Judge Granata’s statement that Hilden (1990), yet, preside or better ask him to going anyway. to die This case and trial, my over a second which to mind was may Instruction No. 4 stand as the well suggested course of action better our outstanding tragic travesty most in the an- opinions. Heitz jurisprudence. nals of Idaho civil deference, returning

But after which Where the district court has ruled that point close, shortly just might will presented the defense evidence that Robert bring change of two votes to re- anyway, Hilden would died mind the other members of the Court that only expired can mean that he would have judge, necessity, district had to preoxygenated, even had he been there nec- have been aware of two causes for Robert essarily to exist in the trial court’s wholly unexpected, sudden and cause, contributing mind another a second Otherwise, tragic demise. how could majority cause. ex- Those written, Judge Granata have as he most pressed no concern as to this second cause. definitely denying plaintiff’s motion mortuary Hilden had not checked in to a j.n.o.v. and for new trial: purpose dying. with the in mind of He did going not know he was to die. The sur- plaintiff

The fact that the has the burden geon present and about to do who was proving that a defendant’s knife on surgery yet on him had not laid a causing was a substantial factor in dam- But, Hilden. he did die. The evidence age plaintiff to the does not excuse the opera- in the record is that it was a routine plaintiff proving injury tion, (which overweight that Hilden was would not have occurred “but [death] negligence. appears to have been for him a near normal for” the defendant’s In- condition),6 struction No. is also consistent with and that reason thereof Additionally, majority opinion, Mr. Hil- 5. In footnote 2 to the defer- Plaintiff contends that posed unusually high risk because of den an ence is increased substantial deference. How It was never giving his size and shortness of breath. such deference is accorded to the of in- that he may escape practitioners established Plaintiff or Defendant of law even structions risk, posed unusually high escapes as it me. Instructions are either correct event, law, testimony of Dr. Ball and the They they statements of are not. Records reflect that he took an inordinate applicable evidentiary facts and either assessing the amount of time and caution in parties, are not. theories surgery. patient preparing him for R., 6. The defendants admitted that: physicians two agreed upon positioning

him so that he would suffer less discom- QUESTION negli- NO. 2: Was there fort. gence part decedent, on the of Plaintiff’s Hilden, Robert

Somewhere in which was a the record there must be proximate cause of his death? this other cause (or “force” as so termed Bakes) something Chief Justice YES_ NO_ —and presented by evidence Dr. Ball QUESTION Considering NO. 3: all of pointed to it. If there is no such parties other the fault of proximate- which cause to point, ly which the district court caused or can contributed to the death of opinion pointed none, percent and his Robert Hilden to one hundred be then it (100%), percentage what stands to attributable support reason that there is no to: for the assertion that Hilden would _% (a) Decedent Hilden Robert anyway. died Under these circumstances _% (b) Defendant Dr. James Ball happy day it would be a for the science of TOTAL 100 % jurisprudence Idaho if the were QUESTION NO. 4: What the total granted the new trial which are clear- damages sustained Plaintiff? ly entitled to have. I would the first to $- recommend that it be tried with the same stated, judgé presiding. Simply the trial [Signature jurors lines for twelve judge’s reading brought him into contact appear here.] with the “but for” instruction which the initiated, Appeals Court of and the trial Defendant Dr. James Ball’s judge thought it fit the facts of this case as Proposed Special Verdicts opinion. is evident from his own There Requested Instructions guarantee no that mistakes will not be R., 82-83. My

made. confidence in judge the district is such that I find it shameful that he is not B APPENDIX given opportunity again to rule in Country Ins. respondent’s brief plaintiff’s motion. Co. was the backbone of the Court’s opin-

ion, quote up narrates the and down history story and the I.R.C.P. started APPENDIX A Co., with Archer v. Shields Lumber caption appears (1967), here.] [Case 434 P.2d 79 at which time it was true that: SPECIAL VERDICT any object instruction failure We, jury, questions answer sub- preclude given by the court shall not Special us in as fol- mitted to Verdict any party assigning to the action from lows: appeal any as error on erroneous in- QUESTION 1: NO. Did the Defendant requested by given, struction such negligently Dr. James Ball fail to meet party, any omission the court to instruction____ applicable standard of health care give proper (Empha- practice community which such added.) sis decedent, provided care was to Plaintiff's Inc., Country Agr. Develop., Ins. v.Co. Hilden, as such standard existed Robert 961, 962, (1985) 695 P.2d 107 Idaho provided, time such care was at the (emphasis original). It amended in respect provid- class of health care 1975: belonged Dr. James Ball er to which provision: ‘The failure ob- [T]he functioning, in which he was and was given by the ject to instruction Court such breach a any party to the action preclude shall not of Robert Hilden? death appeal any assigning as error on omis- erroneous instruction YES NO

343 787P.2d 1151 Idaho, Plaintiff-Respondent, STATE in- give proper court to the sion struction,’ mandatory was stricken and a v. counsel requirement was added that CHENEY, Jr., Richard that will object must instructions Defendant-Appellant. given by the failure to Court and the No. 17311. pre- objection an on the record make raising appeal.

cludes issue on Idaho. Supreme Court of 962, rule P.2d In 1976 the Id. at 695 346. 30, Nov. 1989. again amended: 2, 1976, effective [B]y July order dated 1,1976[,] 1976 amendment

October [t]hat

completely removed the sentence which A in footnote 2 is set out below]. [see PETITION DENYING ORDER rule on further amendment made to the FOR REVIEW 1977, 25, May ... not reinstate a PETITION FOR language Appellant deleted 1976 amend- filed 1989, September 13, sup- and ment, require- on continued the REVIEW but' 1989, 27, conferences, September and porting ment of instruction BRIEF existing Appeals issued Opinion of I.R. of the Court of changed last sentence 40; 1989, 917, 51(a) 29, 116 782 P.2d objections to read ‘All C.P. June consideration, thereto, therefore, any objections giving due after give instruction, or the failure Appel- HEREBY IT IS ORDERED ruling thereon, must be made court’s be, and REVIEW PETITION FOR lant’s part of the record.’ Insofar as is, on Deni- DENIED and the dissent hereby concerned, argument here is rule for Bistline, J., for the Petition Review al of eight years required the almost has not is, be, hereby RELEASED. objections making as a condition BISTLINE, Justice, dissenting on Denial precedent assigning error. of Petition for Review. 963, P.2d amend- Id. at 346. The 1975 Clayton (Matter Clayton), State mandatory placed ment had the rule this (1988), 748 P.2d 401 113 Idaho language: suspen- proceeding civil administrative may assign giving party No as error the license for re- defendant’s sion of that give un- or the failure an instruction evidentiary blood fusing to submit to an party] objects less thereto before [the content.' I.C. alcoholic' test verdict, jury retires to consider its stat- P.2d 18-8002(4); 113 Idaho at § ing distinctly the matter to which [the us is a criminal DUI The case before 402. objects grounds party] [the] County; Clayton arose in Kootenai case. objection. County. Canyon Otherwise case 963, n. Id. at P.2d out, indistin- pointed the cases are as than only in their I write

guishable on facts. of what suggest applicability order to in mind of Clayton with the view stated state inebria- encouraging drivers Clayton Cheney as did and to do tion sleep it to rest and bring the vehicle did— off: aspect to this interesting There is an addressed in is not [Clayton which case ] offi- opinion. doubt Without the Court’s absolutely Mike Moser was cer whys checking out right

Case Details

Case Name: Hilden v. Ball

Court Name: Idaho Supreme Court

Date Published: Mar 1, 1990

Citation: 787 P.2d 1122

Docket Number: 17394

Court Abbreviation: Idaho